Citation Nr: 0207008
Decision Date: 06/27/02 Archive Date: 07/03/02
DOCKET NO. 99-16 493 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Boston, Massachusetts
THE ISSUE
Whether new and material evidence has been presented to
reopen the claim of service connection for a back disorder.
(The issue of service connection for a claimed back
disability will be the subject of a later decision.)
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Mary C. Suffoletta, Associate Counsel
INTRODUCTION
The veteran had active service from March 1982 to February
1986.
This case came to the Board of Veterans' Appeals (Board) on
appeal from a September 1998 decision of the RO.
The record indicates the veteran canceled hearings scheduled
in March 2001, November 2001 and February 2002 before a
Member of the Board due to his incarceration.
A Motion to reschedule for another hearing before a Member of
the Board was denied in June 2002.
As a preliminary matter, regardless of the RO's action, the
Board must address the question of new and material evidence
in the first instance because the issue goes to the Board's
jurisdiction to reach the underlying claim and adjudicate the
claim de novo. See Barnett v. Brown, 83 F.3d 1380, 1383
(Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171
(1996) (applying an identical analysis to claims previously
and finally denied, whether by the Board or the RO).
Only where the Board concludes that new and material evidence
has been received does it have jurisdiction to consider the
merits of the claim. Barnett; Hickson v. West, 11 Vet. App.
374, 377 (1998).
As shown hereinbelow, the Board is reopening the claim but
undertaking additional development on the issue of service
connection for a back disorder, pursuant to authority granted
by 67 Fed. Reg. 3,099, 3,104 (Jan. 23, 2002) (to be codified
at 38 C.F.R. § 19.9(a)(2)). When it is completed, the Board
will provide notice of the development as required by Rule of
Practice 903. 67 Fed. Reg. 3,099, 3,105 (Jan. 23, 2002) (to
be codified at 38 C.F.R. § 20.903).
After giving the notice and reviewing the veteran's response
to the notice, the Board will prepare a separate decision
addressing this issue.
FINDINGS OF FACT
1. In a rating decision in September 1994, the RO denied the
veteran's original claim of service connection for a back
condition. He was notified of this action, but did not enter
a timely appeal.
2. Some of the evidence received since the 1994 RO denial of
service connection for a claimed back condition has not
previously been submitted to VA, bears directly and
substantially upon the specific matter under consideration,
is neither cumulative nor redundant, and by itself or in
conjunction with the evidence previously assembled is so
significant that it must be considered in order to fairly
decide the merits of the claim.
CONCLUSION OF LAW
New and material evidence has been submitted since the final
September 1994 rating decision to reopen the claim of service
connection for a back disorder. 38 U.S.C.A. § 5108, 7105
(West 1991); 38 C.F.R. § 3.156, 20.1103 (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
A. Factual Background
A careful review of service medical records dated in August
1982 reflect that the veteran fell from a height of 20 feet
while out in the field with the "air assault school," and
hit the back of his neck. He reported having pain in the
lower part of his neck, as well as back pain.
An examination at that time revealed a normal cervical and
lumbarthoracic spine. The records show that the veteran was
sent home because he had a past history of trauma to this
region. The diagnosis was that of soft tissue trauma.
A report of VA examination in August 1994 shows a diagnosis
of chronic and recurrent backache. His forward flexion was
to 30 degrees; backward extension was to 15 degrees with
pain. Left lateral flexion was to 20 degrees, and right
lateral flexion was to 25 degrees; rotation to the left and
to the right was to 10 degrees. X-ray studies revealed
evidence of minimal spondylolisthesis at L5-S1 with bilateral
spondylolysis and transitional vertebra.
The veteran underwent another VA examination in August 1994.
He reported that, while training in an exercise course, he
was being rappelled across a ravine on a rope, which broke,
causing the veteran to fall 20-to-25 feet into a muddy ravine
with rocks. Upon examination, there was hypesthesia of the
right lower extremity (to pinprick and brush strokes) from
just below the patella all the way down to the veteran's
toes.
The diagnoses were those of direct trauma to the lower back
and spine, 1984; backaches, chronic and recurrent; and
possible traumatic arthritis of the lumbosacral spine.
Based on the evidence shown hereinabove, in September 1994,
the RO denied the veteran's original claim of service
connection for a back disability.
The evidence received subsequent to the September 1994 RO
rating decision includes statements of the veteran to the
effect that his back had not been the same since his injury
in service and that his back had been a constant irritation.
The veteran also states that he had always worked through the
pain and discomfort, but that he still lost jobs because he
could not do heavy lifting due to severe pain in his back.
He states that he took pain medication, which sometimes did
not help.
B. Legal Analysis
An unappealed rating decision is final with the exception
that a veteran may later reopen a claim if new and material
evidence is submitted. 38 U.S.C.A. §§ 5108, 7105 (West
1991); 38 C.F.R. § 3.156(a) (2001). The question now
presented is whether new and material evidence has
been submitted since the RO's adverse 1994 decision, denying
service connection for a claimed back condition, to permit
reopening of the claim. See Evans v. Brown, 9 Vet. App. 273,
282-83 (1993); Glynn v. Brown, 6 Vet. App. 523, 528-29
(1994); Manio v. Derwinski, 1 Vet. App. 140 (1991).
In considering whether the claim may be reopened, a two-step
analysis must be employed. First, the Board must determine
whether the evidence submitted to reopen the claim is both
new and material. Secondly, if, and only if, the Board
determines that the evidence is both new and material, the
claim is deemed to have been reopened and it must be
evaluated on the basis of all of the evidence of record,
both new and old. See Manio v. Derwinski, 1 Vet. App. 140,
145 (1991).
New and material evidence means evidence
not previously submitted to agency
decisionmakers which bears directly and
substantially upon the specific matter
under consideration, which is neither
cumulative nor redundant, and which by
itself or in connection with evidence
previously assembled is so significant
that it must be considered in order to
fairly decide the merits of the claim.
38 C.F.R. § 3.156(a).
The first step in the two-step analysis involves two
questions: (1) is the newly presented evidence "new," that
is, not previously submitted to agency decisionmakers, and
not cumulative or redundant; and (2) is the newly presented
evidence "material," that is, does it bear directly and
substantially upon the specific matter under consideration,
and is it so significant that it must be considered in order
to fairly decide the merits of the claim?
In addition, for the purpose of determining whether a claim
should be reopened, the credibility of the evidence added to
the record is to be presumed. Justus v. Principi, 3
Vet. App. 510, 513 (1992). There is no requirement, however,
that such evidence, when viewed in the context of all of the
evidence, both new and old, create a reasonable possibility
that the outcome of the case on the merits would be changed.
See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).
Prior to the 1994 RO rating decision, medical evidence of a
permanent residual or evidence as to a continuity of
symptomatology was lacking, and there was no other basis to
support an award of service connection. The evidence added
to the record after the 1994 RO rating decision consists
solely of the veteran's statements, which detail a continuity
of symptomatology of back pain since service.
The Board finds the veteran's statements probative for the
purpose of establishing the presence of such back pain since
service. The United States Court of Appeals for Veterans
Claims has found that symptoms, not treatment, are the
essence of any evidence of continuity of symptomatology. See
Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991).
This evidence, together with evidence already of record as to
a diagnosis of possible traumatic arthritis, reflects a
continuity of symptomatology of what may be a permanent
residual (i.e., low back pain) and must be considered to
fairly evaluate the merits of the claim. Hence, the Board
finds the evidence to be "new and material."
As new and material evidence has been submitted since the
September 1994 RO rating decision, the application to reopen
the claim of service connection for a back disorder is
granted.
C. VA's Duty to Assist and Provide Notice
Among other things, the Veterans Claims Assistance Act of
2000 (VCAA), Pub. L. No. 106-475, 114 Stat 2096, enacted
November 9, 2000, eliminated the well-grounded-claim
requirement and modified VA's duties to notify and assist
claimants. See generally VCAA, §§ 3, 4, 7, 38 U.S.C.A.
§§ 5100, 5103, 5103A, 5107, 5126 (West Supp. 2001); see also
Holliday v. Principi, 14 Vet. App. 280, 284-86 (2001)
(holding all sections of VCAA retroactive).
To implement the provisions of the law, VA promulgated
regulations published at 66 Fed. Reg. 45,620 (Aug. 29, 2001)
(to be codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
3.326(a)).
The United States Court of Appeals for Veterans Claims
(Court) has held, that its holding in Holliday "was not
intended to stand for the proposition that the VCAA requires
remand of all pending claims and that this Court may not
decide that the VCAA could not affect a pending matter."
Livesay v. Principi, 15 Vet. App. 165, 178 (2001)(en banc).
In subsequent decisions the Court has held that the VCAA is
not applicable in all cases. The Court held that the VCAA
was inapplicable to a matter of pure statutory
interpretation. See Smith v. Gober, 14 Vet. App. 227, 231-32
(2000). The Court has also concluded that the VCAA was not
applicable where the claimant was fully notified and aware of
the type of evidence required to substantiate his claims and
that no additional assistance would aid in further developing
his claims. Dela Cruz v. Principi, 15 Vet. App. 143, 149
(2001).
When there is extensive factual development in a case, and
there is no reasonable possibility that any further
assistance would aid the claimant in substantiating his
claim, the VCAA does not apply. Wensch v. Principi, 15 Vet
App 362 (2001); Dela Cruz; see also VCAA § 3(a), 114 Stat.
2097, 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to
provide assistance "if no reasonable possibility exists that
such assistance would aid in substantiating the claim").
In view of the fact that the Board has reopened the veteran's
claim, there is no need for additional assistance in
substantiating this aspect of the claim.
ORDER
As new and material evidence has been submitted to reopen the
claim of service connection for a back disorder, the appeal
to this extent is granted, subject to further action as
discussed hereinabove.
STEPHEN L. WILKINS
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.